Defendant EPs can point to a patient’s unusual presentation to refute allegations of failure to diagnose infectious diseases. Recent malpractice cases have involved:

  • endocarditis mistaken for flu;
  • spinal abscess presenting as low back pain;
  • toothache as the only symptom of necrotizing fasciitis;
  • meningitis misdiagnosed as an upper respiratory infection.

The more unusual the presentation of an infectious disease, the easier it is for the EP to defend the fact that it was missed, according to Rodney K. Adams, LLM, JD, an attorney in the Richmond, VA, office of LeClairRyan. Here are some recent “missed infectious disease” malpractice cases Adams has handled:

  • Endocarditis misdiagnosed as flu in a teenage girl who presented with no history of cardiac abnormalities.

The otherwise-well girl presented with flu-like symptoms on the first ED visit. She was discharged with instructions to rest.

“She returned to the ED somewhat dehydrated, with what looked like the flu, and was told to push fluids and let it run its course,” Adams says.

By the third ED visit, the patient was in extremis with bacterial endocarditis, necessitating mitral valve replacement and multiple neurosurgeries.

“She didn’t have any implants or prior surgeries. No abnormal heart sounds were heard,” Adams says. “There was no reason to think she had this nasty bug. It was a zebra.”

An ED nurse practitioner (NP) saw the patient for the first two visits. The plaintiff alleged that the EP should have examined the patient.

“It wasn’t clear what the EP would have seen differently. It appeared to be a viral illness,” Adams says.

Still, the case resulted in an $850,000 verdict for the plaintiff.

“Some of the jurors, when we talked to them afterward, thought the EP left the NP hanging by herself, which was an unfortunate perception,” Adams recalls.

The defense was hindered by a sparse ED chart. “We could have done a much more thorough job of documenting vital signs and describing her condition,” Adams concedes. “Otherwise, it was what you see 30 of every day during flu season.”

  • A spinal abscess, with low back pain as the only symptom, in a middle-aged man.

“The patient didn’t have any neurologic involvement,” Adams notes. The EP elected not to order a CT scan or MRI because it appeared the patient suffered from typical lower back pain. “The EP was distraught at being sued, and requested the case be settled,” Adams says. “Likely, the case could have been successfully defended.”

  • A young woman with a toothache that was a life-threatening head and neck infection.

A dentist was the defendant in the ensuing malpractice litigation. However, the scenario also is applicable to EPs, Adams notes. The dentist contacted an oral surgeon to report the patient presented with some swelling in the lower jaw, consistent with an abscess. The recommendation was pain medication and a follow-up appointment.

“Lo and behold, the patient comes to the ED shortly after with necrotizing fasciitis all the way down into her chest,” Adams says.

The patient was on long-term antibiotics and endured several debridements of the neck and chest.

“It was a fairly tough course and was very difficult to treat, but she survived it,” Adams says.

The EP and surgeon moved aggressively, taking the patient to the OR promptly. The plaintiff attorney alleged the condition could have been detected if the dentist had ordered a CT scan or MRI.

“The jury returned a defense verdict for the dentist, based on testimony from most of the experts on both sides as to the rarity of necrotizing fasciitis in this setting,” Adams adds.

  • Meningitis in young children, misdiagnosed as an upper respiratory infection.

“We’ve had a couple of those cases. The ED folks can get burned by those,” Adams says. The problem is that the presentation of meningitis can be fairly subtle. “You’re not going to do a spinal tap on every infant who comes in with a runny nose that’s not quite as active as they normally are,” Adams notes. “They’re not benign procedures and can have complications.”

Documenting that the EP examined the child thoroughly and that there was nothing pointing to a neurological disorder is helpful. Typically, the description of the child’s condition by the parents conflicts with the EP’s.

“But the jury tends to believe what’s in the ED chart more so than the parents,” Adams notes.